Mick v. Gibbons

BRYAN S. MICK, Personal Representative of the Estate of Print Zutavern, Deceased; Plaintiff, v. DEPUTY BARRETT GIBBONS, et al.; Defendants.

No. 4:22-CV-3025

United States District Court, D. Nebraska

August 23, 2022

MEMORANDUM AND ORDER NUNC PRO TUNC

John M. Gerrard, United States District Judge.

Print Zutavern was shot and killed by Trooper Brandon Wilkie of the Nebraska State Patrol (NSP) during a law enforcement operation aimed at getting Mr. Zutavern to a mental health facility. Bryan Mick, the personal representative of the Estate of Mr. Zutavern, has sued multiple parties that were allegedly involved in the incident, including Trooper Wilkie and several other members of the NSP (filing 1). This matter is before the Court on the NSP defendants' motion to dismiss most of the claims against them (filing 46). For the reasons outlined below, the Court will grant this motion.

I. BACKGROUND

According to the plaintiff, the claims in this case arose as follows. On February 22, 2020, Deputy Lawrence Stump of the Custer County Sheriff's Office stopped Mr. Zutavern on suspicion of driving while intoxicated. Filing 1 at 3. His wife, Kate Zutavern, was a passenger in the vehicle at the time. Filing 1 at 3. Deputy Stump was allegedly familiar with Mr Zutavern, as he had "been taken into emergency protective custody by law enforcement" on multiple occasions prior to the stop when "he was unable to care for himself and/or because he was a danger to himself or others." Filing 1 at 3-4. In these scenarios, law enforcement had allegedly transported him to inpatient psychiatric treatment centers. Filing 1 at 4. In total, Mr. Zutavern had allegedly been hospitalized eight times at a facility for dual-diagnosis patients with bipolar disorder I. Filing 1 at 6.

During the stop, Mr. Zutavern exhibited erratic behavior. At one point, he presented a pocketknife and told Deputy Stump "I could stab you with this." Filing 1 at 4. Later, he made the same threats with a Chapstick. Filing 1 at 4. Mr. Zutavern also called Deputy Stump a "big chicken" and sang "Old MacDonald had a farm." Filing 1 at 4. When Deputy Barrett Gibbons arrived on the scene to provide assistance, Mr. Zutavern was undergoing field sobriety tests. Filing 1 at 4. However, after Mrs. Zutavern expressed concern that her husband was having a manic episode, the deputies concluded that Mr. Zutavern was not under the influence, and Deputy Stump drove the Zutaverns home in his cruiser. Filing 1 at 4-5.

Shortly after the couple returned home, Mrs. Zutavern called 911 to report that her husband "had exploded in rage," defacing their property and screaming in her face. Filing 1 at 5. While en route to respond to the call, Deputy Gibbons located Mrs. Zutavern walking along the side of the road. Filing 1 at 5. She was transported to the sheriff's office, where she called Mr. Zutavern's father, John Zutavern, and requested that he come from his ranch, the Rolling 7 Ranch, to help. Filing 1 at 5. Meanwhile, Deputy Stump returned to the Zutaverns home with a family friend who agreed to stay the night with Mr. Zutavern and take him to an inpatient psychiatric facility the next day. Filing 1 at 5.

However, in the early morning hours of February 23, 2020, this family friend called the sheriff's office to report that Mr. Zutavern wanted to go to the psychiatric facility immediately. Filing 1 at 5. Upon request, Deputy Gibbons retrieved the family friend and drove him to Mr. Zutavern's pickup, which was still parked where Deputy Stump had originally conducted the traffic stop. Filing 1 at 5. During this time, Mr. Zutavern was left at home unattended, and by the time the men returned with his pickup, he had stolen his neighbor's truck and driven himself to the Richard Young Hospital in Kearney, Nebraska. Filing 1 at 5-6. But Mr. Zutavern was allegedly denied admission and told to go home. Filing 1 at 6.

Shortly after, Mr. Zutavern drove to the sheriff's office in the stolen truck to look for his wife and his cell phone. Filing 1 at 7. But Mr. Zutavern was not taken into custody at this time; instead, he went home to meet up with the same family friend, who had allegedly told Deputy Gibbons that he "thought he could handle [Mr. Zutavern]." Filing 1 at 7. However, the next day, John Zutavern called 911 from the Rolling 7 Ranch requesting assistance for his son. Filing 1 at 7. He allegedly reported that Mr. Zutavern was in bad shape and that his manic episode had worsened. Filing 1 at 7. Specifically, he reported that Mr. Zutavern had shot two calves, was making suicidal statements, and was in the property's clubhouse sending photos of himself with a shotgun to his head. Filing 1 at 7.

John also spoke to Deputy Gibbons, reporting that he and his wife had left the ranch because "there was no reasoning" with their son but had accidentally left the keys in a RAZR utility task vehicle that was on the property. Filing 1 at 7. However, despite Mr. Zutavern's erratic behavior, they allegedly left the clubhouse and the ranch freely. Filing 1 at 7-8. After this conversation, Deputy Gibbons notified Dan Osmond, the Custer County Sheriff, of the situation, and Sheriff Osmond in turn summoned the NSP. Filing 1 at 7. Captain Tyler Schmidt, who allegedly had on-scene command authority for the NSP response, was briefed on the situation, including the fact that Mr. Zutavern had a "personal history of competitive firearm marksmanship." Filing 1 at 8. Ultimately, Sheriff Osmond and Captain Schmidt devised a plan: they would convince Mr. Zutavern to exit the clubhouse and urge him to go to a mental health hospital. Filing 1 at 10. Captain Schmidt then summoned NSP personnel, air support, bomb technicians, dog handlers, and negotiator Trooper Sam Mortenson, but allegedly failed to communicate the particulars of this plan with any personnel on the response team. Filing 1 at 8-9.

According to the plaintiff, a standoff ensued for several hours. Filing 1 at 8. During this time, Trooper Mortenson allegedly communicated with Mr. Zutavern over the phone and in text messages, in which Mr. Zutavern warned law enforcement to stay away from the clubhouse and sent unhinged messages. Filing 1 at 8. Mr. Zutavern also allegedly told Trooper Mortenson that he was hearing gunshots even though no guns were being fired. Filing 1 at 8. In response to these communications, Trooper Mortenson allegedly told Mr. Zutavern multiple times to turn himself in to get mental health help. Filing 1 at 9.

When the standoff was approaching its twelfth hour, Captain Schmidt allegedly directed NSP personnel to approach the clubhouse in a light-armored vehicle (LAV) and "deploy a robot to disable the RAZR." Filing 1 at 9. According to the plaintiff, Captain Schmidt used this more abrasive approach-as opposed to less direct approaches to coax Mr. Zutavern out of the clubhouse- because he was fixated on completing the operation before it went over twelve hours. Filing 1 at 9, 12. The LAV was followed by Lieutenant Tim Arnold and Trooper Carlos Trevino, who were in a non-armored vehicle. Filing 1 at 9. But as the vehicles approached, Mr. Zutavern exited the clubhouse wearing a helmet and goggles, entered the RAZR, and drove toward the ranch's main entrance. Filing 1 at 9. He was followed by Lieutenant Arnold and Trooper Trevino, as well as Sergeant Matt Workman, a dog handler who was also driving a non-armored vehicle. Filing 1 at 10.

Troopers Levi Cockle and Brandon Wilkie-dog handlers who had arrived on the scene approximately ten minutes before Mr. Zutavern left the clubhouse-were stationed at the entrance. Filing 1 at 10. Although the particulars of Sheriff Osmond and Captain Schmidt's plan were allegedly not communicated to them, the plaintiff's complaint acknowledges that both Troopers Cockle and Wilkie knew that the goal of the operation "was to get a suicidal subject into a mental health facility." Filing 1 at 10. As Mr. Zutavern approached the entrance, Lieutenant Arnold instructed Trooper Trevino to "ram" the RAZR with their trailing vehicle. Filing 1 at 10. And the plaintiff asserts that although Trooper Trevino followed that directive, Mr. Zutavern did not respond to the provocation nor did he reach for the firearm that was "always" on the RAZR "to shoot coyotes or other vermin." Filing 1 at 10.

But shortly after the RAZR was rammed, Mr. Zutavern allegedly "waited a moment." Filing 1 at 12. In response, Trooper Trevino and Lieutenant Arnold "exited their vehicle and pointed their firearms at [Mr. Zutavern] from the cover of their vehicle" while Troopers Cockle and Wilkie, who were just a few feet away, were also pointing their firearms at Mr. Zutavern from the opposite direction. Filing 1 at 12. According to the plaintiff, Mr. Zutavern never "fired, aimed or brandished a firearm at anyone or any animal" while law enforcement was present. Filing 1 at 8. Still, as Mr. Zutavern exited the RAZR and started walking toward Troopers Cockle and Wilkie, all four officers allegedly kept their firearms drawn and screamed commands at him. Filing 1 at 12-13. And although Mr. Zutavern was allegedly "unable to process and follow" these directives because of his mental state, Trooper Wilkie shot him three times as he approached. Filing 1 at 11-13. Mr. Zutavern died from these injuries. Filing 1 at 13.

The plaintiff asserts that any observant and alert law enforcement officer could have seen that Mr. Zutavern was unarmed when he exited the RAZR. Filing 1 at 12. Yet, no defendant deployed any less-lethal alternatives, or was prepared to do so. Filing 1 at 12. And no defendant deployed his dog, though Trooper Cockle, Trooper Wilkie, and Sergeant Workman all had their dogs on the scene. Filing 1 at 12. Accordingly, Mr. Mick has sued the individual law enforcement...